Summary: We will not investigate Ms X’s complaint about the Council failing to complete an annual review in 2020 and 2021, and for delay in producing a final Education, Health, and Care plan. This is because part of Ms X’s complaint is late and because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused by the likely fault.

The complaint

1. Mrs X complains the Council failed to complete an annual review in 2020 and 2021. She also complains the Council failed to produce a final Education, Health, and Care (EHC) plan within the required timescales, which frustrated her right of appeal.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X’s child has an Education, Health, and Care (EHC) plan.
7. During its complaint investigation, the Council accepted it failed to hold an annual review of the child’s EHC plan in 2020 and 2021. The Council explained while it delegated responsibility for holding the review to the school, it should have monitored the reviews were taking place.
8. Ms X’s complaint about the lack of annual reviews in 2020 and 2021 is late. We do not consider there are any good reasons for why Ms X did not complain about the matter earlier. If Ms X considered the lack of reviews impacted on her child negatively, it would have been reasonable for her to raise concerns about the lack of an annual review at the time.
9. With regards to Ms X’s complaint the Council failed to produce a final EHC plan within the specified timescales, if we were to investigate it is likely we would find fault causing injustice. This is because the Council should have issued her child’s final EHC plan within 12 weeks of the date of the annual review. The annual review was held in November 2022.
10. We note the Council states it did not receive the annual review paperwork from the school until February 2023. The Council appears to have started the ‘clock’ from this date as it said during its complaint response it needed to have issued the final EHC plan by April 2022.
11. However, the law is clear that the Council must send the notification to amend/keep/cease within four weeks of the annual review. In March 2022, the high court found that when councils issue a decision to amend notification, it must also send the proposed amendments. The Council then has eight weeks to issue the final EHC plan from when the amended EHC plan was issued.
12. This means the Council must issue the final EHC plan within 12 weeks of the date of the annual review meeting. Therefore, the Council should have issued the final EHC plan by the end of February 2023. The Council confirmed it has now issued the final EHC plan.

13. I am satisfied the delay in the Council issuing the final EHC plan will have caused Ms X distress and frustrated her right of appeal. We therefore asked to the Council to consider remedying this by making a financial payment of £150.

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Agreed action

14. To its credit, the Council agreed to resolve the complaint and will complete the above recommendation within four weeks of the final decision.

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Final decision

15. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X.

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Investigator's decision on behalf of the Ombudsman